Energy and Petroleum Regulatory Authority & another v Thirunga (Environment and Land Appeal E026 of 2025) [2026] KEELC 1862 (KLR)
The bottom line
#The High Court paused collection of a multi-million-shilling judgment until an appeal is heard, but only if half the money is deposited in a joint escrow account within 60 days.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Appellants have established the conditions to warrant the grant of an order of stay of execution pending appeal or otherwise
- 2.The security [if any] to be provided in the event of grant of an order of stay of execution
Key legal issues
#Whether the application was filed without unreasonable delay
The application was timeously filed; judgment was delivered on 12.02.2026 and the application filed on 10.03.2026
The court compared the date of delivery of the impugned judgment with the date of filing the application and concluded the interval disclosed no unreasonable delay, satisfying Order 42 Rule 6(2)(a).
Whether the Appellants demonstrated sufficient cause
The filed memorandum of appeal raising arguable issues, including jurisdiction of the lower court, constituted sufficient cause
The court held that a prima facie appeal - one meriting interrogation, not one that must succeed - suffices as sufficient cause, adopting the meaning of the phrase from Wachira Karani v Bildad Wachira as requiring absence of negligence or inactivity.
Whether the Appellants demonstrated substantial loss
Substantial loss established; the decretal sum is substantial and the Respondent did not prove capacity to refund
The Respondent claimed capacity to refund the decretal sum but, that means being peculiarly within its knowledge, bore the burden of proving it under Section 112 of the Evidence Act. No bank statements were tendered, so no proof of means existed, and the court found a likelihood of substantial loss.
What security, if any, should be provided
Security of half the decretal sum deposited in an escrow account in the names of the parties' advocates, operationalized within 60 days, failing which stay lapses
The court balanced the judgment creditor's right to the fruits of the judgment against the appellant's constitutional right of appeal (Article 48), following Gitahi v Warugongo on even-handed security. The quantum must be fair and reasonable and not negate the right of appeal.
Legal principles established
#- An applicant for stay of execution pending appeal must establish four conditions: sufficient cause, timeliness, substantial loss, and security
- The existence of a genuine and arguable appeal constitutes sufficient cause
- Substantial loss is the cornerstone of granting stay and is loss not readily compensable in monetary terms
- The determination of the quantum of security belongs to the court, not the parties
Court orders
#- 1.The Application dated 10.03.2026 be and is hereby allowed
- 2.An order of stay of execution of the judgment and decree of the lower court dated 12th February 2026, pending the hearing and determination of the appeal
- 3.The Appellants shall provide security by depositing half the decretal sum in an escrow account in the names of the advocates for the respective parties, to be opened and operationalized in the names of the Honourable Attorney General and learned counsel for the Respondent
- 4.The escrow account shall be opened and operationalized within 60 days from the date of the order
- 5.In default of compliance, the orders of stay shall lapse and the Respondent shall be at liberty to execute the decree
- 6.Costs of the Application shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Lower court (not named in the judgment)
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act (Cap. 21); inherent jurisdiction of the court
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There be and is hereby granted an order of stay of execution of the judgment and the decree of the lower court dated 12th February, 2026, pending the hearing and determination of the appeal.
The Appellants herein shall provide security by depositing half the decretal sum in an escrow in the names of advocates for the respective parties.
In default by the Appellants to comply with the said directions, the orders of stay shall lapse and the Respondent shall be at liberty to execute the decree of the lower court.
Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay.
The aim is to make sure, in an even-handed manner that the appeal will not be prejudiced and that the decretal sum is available if required.
Costs of the Application shall abide the outcome of the appeal.
Issues in the judgment
#Application described as filed 10.03.2026 but supporting supplementary affidavit elsewhere dated 23.02.2026, predating the application and the judgment
Paragraph 15 cites Order 42 Rule 6[2][b] for both the substantial-loss condition and the security condition, though the security condition is usually under Rule 6(2)(c)
Party names are not given in the judgment; parties are referred to only as Appellants/Applicants and Respondent, with the deponent Hamid Mohammed identified
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Energy and Petroleum Regulatory Authority & another v Thirunga (Environment and Land Appeal E026 of 2025) [2026] KEELC 1862 (KLR)", Case Analysis (2026). Not stated in the judgment (Notice of Motion dated 10.03.2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1862/eng@2026-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.